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Criminal justice legislation steeped in controversy

Was there anything about criminal justice in the 2013 General Assembly session that wasn’t controversial? Bills on criminal justice pitted Republicans against Democrats, Democrats against Democrats and Democratic legislators versus the governor.

Fights over child predators, the death penalty and DNA made the 2013 session one battle royale after another.

None may have been as ugly as the battle over “Jessica’s Law.” Colorado is one of just five states that hasn’t passed this bill, patterned after a 2005 law in Florida targeting child predators. The bill is named for Jessica Lunsford, a Florida girl who was sexually assaulted and murdered by a man with previous convictions for sex offenses. The Florida law requires a mandatory minimum of 25 years for anyone convicted of sexual assault on a child of 12 years or younger and lifetime probation.

Governor John Hickenlooper signs into law HB 1230 during a ceremony on June 5. The signing brought to the capitol the bill's sponsors, Sen. Lucia Guzman, D-Denver; Rep. Dan Pabon, D-Denver and Rep. Angela Williams, D-Denver. Also in attendance was Robert Dewey (third from left), who was wrongfully incarcerated for 17 years, and his attorney, Danyel Joffe (to his right).

Photo by Marianne Goodland/The Colorado Statesman

Assistant House Minority Leader Rep. Libby Szabo, R-Arvada, sponsored a bill modeled after the Florida law. HB 1149 sought a minimum 25-year sentence for those convicted of sexual assault on children 14 years or younger. The bill drew opposition from Democrats who claimed Colorado law already has some of the harshest sentences in the country for child predators, and the bill died on a party-line vote in its one and only committee hearing on Feb. 13.

But that wasn’t the end of it. Szabo took to the national airwaves to complain about Democrats’ tactics in killing the bill, and accused Speaker of the House Mark Ferrandino, D-Denver, of killing the bill, implying that he protects child predators because of his sexual orientation. In an interview with Fox TV host Bill O’Reilly, Szabo claimed Ferrandino was “protecting somebody,” and that the rights of child predators hold more sway with him than do victims.

Ferrandino told an O’Reilly reporter that both district attorneys and victims’ rights groups opposed HB 1149. “All the people in criminal justice think that the laws we have are strong enough and are tougher than Jessica’s Law… I think we know what’s in Colorado’s best interests.”

The fight over Jessica’s Law hung over the General Assembly for most of the session thereafter, with calls from Republican legislators and outside groups for Ferrandino to let the bill come to the House floor. The battle went down to the last full week of the session, when Szabo attempted an amendment to the criminal omnibus bill, SB 229, that would have added mandatory sentencing for sex offenders. But bill sponsor Rep. Daniel Kagan, D-Denver, instead amended the bill to remove sections where the amendment would have applied.

Quietly, however, some movement on the issue took place through another bill. Szabo and Rep. Frank McNulty, R-Highlands Ranch, sponsored an amendment to HB 1236. The bill, sponsored by Rep. Claire Levy, D-Boulder, deals with conditions for release on bail. The Szabo-McNulty amendment removes those accused of sexual assault on a child as eligible for bail and/or conditional release. Szabo called it a “small step in the right direction. Studies show that those who offend once often offend again, and this bill will help keep child predators off our streets a little longer.” But she also said that the bipartisan support for the amendment showed that legislators on both sides of the aisle were ready to support a Jessica’s Law bill and the time for stalling was over.

One of the criminal justice bills that did make it to Hickenlooper’s desk, and a public signing ceremony, is HB 1230. The bill sets up a payment of $70,000 for every year a person wrongfully convicted and incarcerated.

The poster child for HB 1230 is Robert Dewey, who spent 17 years in prison before DNA evidence cleared him. Dewey testified before two legislative committees on his experience.

Dewey was 33 when he was convicted of the rape and murder of Jacie Taylor of Palisade. His only child, a son, died seven years ago, and he missed getting to know his grandchildren while he was incarcerated. A year ago, all charges were dismissed against him when DNA evidence pointed to someone else. He has lived on a small Social Security check since his release.

“Think about what you’ve done in the last 18 years. I’ve been in a box,” Dewey told the House Judiciary Committee on March 21. He told the committee he still needs counseling and learning to live on the outside, especially with the changes in technology. He pledged that if the bill passed, he would use some of the money for children with cancer and the Innocence Project.

During the bill signing on June 5, Gov. John Hickenlooper apologized to Dewey for his wrongful conviction.

DNA also played a role in another bill that went to the governor. A November report from KMGH TV revealed that hundreds of rape kits had gone untested; nearly 44 percent out of approximately 1,064 kits received by the Denver Police Department since 2008.

Legislators took action with HB 1020, a bill introduced by McNulty. The bill requires that once the backlog of untested kits is processed, any future rape kits must be tested within 21 days of receipt and compared to DNA databases. The Colorado Bureau of Investigations is also required to submit a plan for dealing with the backlog.

No one testified against the bill in its primary committees.

One of those untested kits came from Kelly Binder of Denver. Binder, who wept during her testimony, was drugged and raped by a stranger in downtown Denver in 2010. “I was scared of the justice system, of not being believed. I was terrified of the man who assaulted me.” But she still reported the crime. “I did everything I was supposed to do. I put my trust in the justice system… I surrendered as possible evidence the clothing I wore.” But the rape kit was never sent to the crime lab. Binder still fears for her safety; the man who raped her was identified through other means and is in active duty in the military. “The system has utterly failed me,” she sobbed.

No longer. HB 1020 sailed through every committee hearing, garnering only one “no” vote in the entire process, a vote in the Senate Judiciary Committee from Sen. Kevin Lundberg, R-Berthoud. Lundberg based his “no” vote on concerns over Fourth Amendment rights, and he did vote for the bill on the Senate floor. Hickenlooper signed HB 1020 on June 5.

Another bill dealing with the crime of rape is SB 227, sponsored by Senate Majority Leader Sen. Morgan Carroll, D-Aurora and Rep. Lois Landgraff, R-Fountain. The bill terminates the parental rights of a person who has raped his minor child and a child is conceived of that assault. Similar laws are already in place in 26 states. The governor signed the bill on June 5.

Hickenlooper and Democratic legislators found themselves at odds over two bills that would repeal the death penalty. The first was HB 1264, sponsored by Reps. Claire Levy, D-Boulder and Jovan Melton, D-Aurora. The law would’ve repealed the death penalty for offenses committed after July 1, 2013.

However, the bill didn’t have the support of the governor, who reportedly told House Democrats he was considering a veto. Levy told The Denver Post she blamed the governor for the bill’s defeat, initially believing she had the votes to get it to his desk.

A second bill, HB 1270, came from Rep. Rhonda Fields, D-Aurora, which would have sent the matter to the voters in 2014. Fields pulled her bill the day after HB 1264 was killed.

One bill that the governor never had to decide on is HB 1251, which would have required DNA swabs be taken for convictions on Class 1 misdemeanor charges.

The bill got a nearly seven-hour hearing in the House Judiciary Committee on April 11. Sponsor Rep. Dan Pabon, D-Denver, called the bill a companion to his earlier bill on wrongful incarceration. HB 1251 will “save lives, solve cold cases, exonerate the innocent and protect public safety. DNA is the fingerprint of the 21st century,” Pabon said, and he brought along Robert Dewey to testify in favor of it. But Pabon wound up with opposition from his own party on the bill over concerns that it was too broad and would violate civil liberties, although the bill did get out of the House on a bipartisan vote.

It wasn’t so lucky in the Senate; it died in the Senate Judiciary Committee the day before the end of the 2013 session. “This is a great bill that I don’t have the votes to get through the Senate,” said Senate President John Morse, D-Colorado Springs.

The General Assembly did quietly pass a bill on sentencing reform in the last week of the session. SB 250 would change the penalties for convictions of certain drug offenses. The bill applies to charges of possession of 4 grams or less of a Schedule I or II controlled substances (this includes codeine, hydrocodone, oxycodone, cocaine and morphine), 2 grams or less of methamphetamine, heroin, ketamine or bath salts; or 4 grams or less of Rohypnol.

Those convicted or pleading guilty to possession under these limits may be required to complete a community-based probation or corrections program. Upon successful completion of those programs, the conviction can be reduced to a misdemeanor possession.

SB 250 sponsors include Sens. Pat Steadman, D-Denver and Steve King, R-Grand Junction. Its House sponsorship was also bipartisan. The bill originated with the Commission on Criminal and Juvenile Justice (CCJJ) and unanimously supported by that group. But it was opposed by Denver District Attorney Mitch Morrissey, who told the Senate Judiciary Committee that pas-sage of the bill would send a message to the Mexican drug cartels that “Colorado is open for business. It’s worth the cost to make millions of dollars selling drugs in Colorado, because if you get caught you won’t serve any time.” Morrissey claimed the bill would reduce the sentences and penalties for drug dealers, which he did not support.

Steadman told the Senate Judiciary Committee that he hopes the bill will help reduce the demand for drugs. “By offering incentives for people to successfully complete drug treatment, we can make a difference in these peoples’ lives…” This is a “paradigm shift” for law enforcement and prosecutors, King told the committee. In the 1990s, at the heart of the ketamine problem, his sheriff had a choice: build a new pod in the jail or build a treatment facility. The sheriff and county commissioners chose the treatment facility. In addition, the recidivism rate in the 21st Judicial District has dropped in half. “It’s a paradigm shift the state of Colorado deserves,” he said.

SB 250 was lauded by the American Civil Liberties Union, which included it in a list of bills that the ACLU said was breaking state “addiction to incarceration” in the war on drugs. The bill passed the General Assembly with 99 out of 100 votes and was signed into law on May 28.